Forget the first 100 days—there’s plenty to litigate in the first 10. Since his inauguration on Jan. 20, President Trump has issued four executive orders and seven presidential memorandums. These executive orders include everything from fast-tracking pipeline projects to cracking down on sanctuary cities to freezing immigration from Muslim-majority countries. Keep in mind, this is coming from a man who said in his campaign, “I would build consensus with Congress. I don’t like the idea of using executive orders like our President.” This is also from a party who likened Obama’s use of executive actions to emperorship.
Trump’s hypocrisy in immediately resorting to drastic executive actions is obvious. But hypocrisy is distinct from unconstitutionality, and simply criticizing the president for his use of executive orders diminishes the importance of their content. Trump broke Obama’s record for the most executive actions in the first week in office, which include executive orders and presidential memoranda. Executive actions have existed since the very founding of American democracy, and many analysts argue that executive action is a crucial part of showing a commitment to campaign promises at the beginning of a presidency. Does Trump’s use of executive action highlight a blatant disregard for ideological consistency? Sure. But is it unusual? Not at all.
Nor is it unusual to push controversial action using executive orders, though presidents who chose to do so have often faced heavy criticism. Obama used executive action to push health care reform and DACA; the Manhattan Project was funded by an executive order; even the Emancipation Proclamation was an executive order. Avoiding the use of executive action as a means to push controversial legislation might be politically tactful, but, in reality, such a restriction would negate the whole purpose of executive action in the first place. “Controversial” is subjective unless you measure it, and if an executive action had to be ratified, it wouldn’t be an executive action.
It should also be noted that executive actions are still subject to budget restrictions.Presidents are required to cite their authority in issuing a given executive action. Additionally, orders are subject to vetting by the Department of Justice, and the Supreme Court is able to rule any
executive action unconstitutional. Executive actions, if we accept them as an integral part of American democracy, are not in and of themselves dangerous. They are dangerous in conjunction with a climate of fear and urgency and the breakdown of mechanisms meant to keep everything in check.
It’s hard not to compare Trump’s immigration order with FDR’s Executive Order 9066—which infamously established Japanese internment camps during World War II. Executive Order 9066 has been described as borderline martial law. Following Pearl Harbor, it allowed for the roundup and relocation of Japanese-Americans, the vast majority of whom had no affiliation with the Japanese war effort, into overcrowded and underfunded camps. Order 9066 did this entirely constitutionally, according to Korematsu vs. the United States.
As a result, Japanese Internment is now a horrifyingly apt precedent for the immigration policy established last week. And, like other events last week, it passed, not because one president overstepped his legal bounds, but because one president espoused a paranoid and racially prejudiced attitude to which enough of the country was susceptible. As TIME magazine recently pointed out, a commission investigating the internment concluded that “The broad historical causes which shaped these decisions were race prejudice, war hysteria and a failure of political leadership. Widespread ignorance of Japanese-Americans contributed to a policy conceived in haste and executed in an atmosphere of fear and anger at Japan. A grave injustice was done to American citizens and resident aliens of Japanese ancestry who, without individual review or any probative evidence against them, were excluded, removed and detained by the United States during World War II.”
To the extent that “an atmosphere of fear and anger” makes possible the haste with which a policy is conceived, the president’s agenda is far from forced on the people behind executive actions like Trump’s or Roosevelt’s.
The danger is that once the will of the people make unjust executive action possible, it’s hard for those actions to be overturned. The U.S. has long been criticized for its crawling speed, stalemates, and shutdowns. Now we see the luxury in always having time—time to process, time to protest, to research, to take to court.
The genius of Trump’s executive action hurricane is that it leaves us no time. We had only just begun to discuss the first when we were bombarded with the second; citizens can barely keep up with the news. Lawsuits opened now could take months to resolve, and the flurry of orders and memoranda leave us struggling to prioritize just one. This gives us the impression of panic; it drives us further into the wartime mentality it grows out of.
If anything, combatting executive action lies more firmly with the public than the Supreme Court or the legislature. Ironically, what seems the least democratic part of this democracy is rooted most definitively in the people.